Charlottesville, the First Amendment and the Press

Most reactions to the march by white supremacists in Charlottesville, Va., last month
condemned the marchers, their message and their use of swastikas, chants and Nazi
imagery. But there were also questions of why they were allowed to hold their march
and spread their vile message of hate.

The latter question is just one of the latest examples of a recent trend in which
some are asking whether certain groups and individuals should be permitted to express
views that offend others. There has been violence on some college campuses in reaction
to controversial speakers like conservative firebrand Milo Yiannopoulos and Richard
Spencer, leading some schools to cancel such events to avoid controversy and security
issues. Internet companies are revoking hosting services from supremacist websites.

Meanwhile, legislators in several states — but apparently not South Carolina — have
proposed or passed laws requiring demonstrators who are convicted on crime connected
to their protests to pay the police and other public safety expenses of their demonstrations.
Other states have passed laws immunizing drivers who injure protestors blocking public
roads. Of course, the one death in Charlottesville resulted from a car running into
a group of counter-protestors.

Even the American Civil Liberties Union, which traditionally has offered legal advice
and counsel to even the odious of speakers, questioned the extent of its commitment
to defend such groups after the Charlottesville march. In the end, the group declared
that it would no longer represent while supremacist groups who hold armed demonstrations
that are likely to lead to violence.

Finally, recent polls have shown wavering support for free speech rights for extremist
groups. A poll by McLaughlin & Associates found that 85 percent of respondents agreed that freedom of speech is a fundamental
right in the United States. Yet in a recent Economist/YouGov Poll, 54 percent of respondents said that they would oppose an ISIS member speaking in
their community; 45 percent would oppose a speech by a Klu Klux Klan member; and 47
percent would oppose a Neo-Nazi speaker.

But the First Amendment’s protection of freedom of speech includes not only speech
that we as a society generally find acceptable. In fact, it specifically protects
speech we would rather not hear, because it is insulting, offensive, repulsive and/or
uncomfortable.

Most recently, Chief Justice John Roberts reiterated this sentiment in his plurality
opinion in Matal v. Tam, which struck down rules barring offensive trademarks:[The idea that the government has an interest in preventing speech expressing ideas
that offend] strikes at the heart of the First Amendment. Speech that demeans on the
basis of race, ethnicity, gender, religion, age, disability, or any other similar
ground is hateful; but the proudest boast of our free speech jurisprudence is that
we protect the freedom to express “the thought that we hate.”

But while the Court has consistently held that the First Amendment protects even the
most vile speech against government censorship, it has also held that speech may lead
to sanctions if it advocates violence or other immediate illegal action. In a 1969 case reversing the conviction of a Klu Klux Klan leader who gave an incendiary speech,
the Court held that

[T]he constitutional guarantees of free speech and free press do not permit a State
to forbid or proscribe advocacy of the use of force or of law violation except where
such advocacy is directed to inciting or producing imminent lawless action and is
likely to incite or produce such action.

But this is a very high standard, and language that is “merely” offensive without
the danger of imminent lawlessness is, indeed, protected by the First Amendment. As
U.S. Supreme Court Justice Oliver Wendell Holmes wrote in 1929, “if there is any principle of the Constitution that more imperatively calls for
attachment than any other, it is the principle of free thought — not free thought
for those who agree with us but freedom for the thought that we hate.”

This tradition of tolerance for expression of offensive speech is a hallmark of American
law, and protects speakers of all types: from the most radical to the most reserved,
and everything in between. This includes, of course, the news media.

John Marshall Harlan II wrote in 1971 that “one man's vulgarity is another’s lyric.” And while the protections of the First
Amendment can often result in an offensive cacophony, they also orchestrate the harmony
of freedom.

Eric P. Robinson, Esq.

Dr. Robinson teaches media law at the School of Journalism and Mass Communications.
He has worked on media law issues as an attorney at the Reporters Committee for Freedom
of the Press, the Media Law Resource Center, and the Reynolds National Center for
Courts and Media.